Israeli law

The law of Israel is a mixed system of common law and civil law.

Sources of Israeli law

The sources are:

• Ottoman casuistic muslim law Matrimonial and Real Estate Registration מג'לה
• British common law
• Israeli codification (torts and contracts)
• International treaties voted by Knesset into local law.
• Declaration of Independence[1] - nonbinding manifesto
• American Law US precedents, caselaw, Model rules and the Rstatement.

Historical perspective to the sources of law affecting legal practice in Israel today:

Very little Turkish Ottoman law is left today. The Turks who did not wish to interfere with the freedom of religion ordered that each resident surrender to the Religious Courts of his personal affilliation for personal status and matrimonial purposes. This system, in general, survived. Also the Turks adopted the Napoleonic Land Registration system, through a succesive Block and Lot entries. Although this is a more rational system than the American Grantor-grantee index registration system, today, land registration in Israel is in a state of chaos. In order to find who an owner is at any given time, an attorney must conduct a seies of costly investigations with arious arms of the Government, and sometimes with the private building company books. No title insurance is offered in Israel. Malpractice suits against real estate attorneys are quite common.

The British who were given a League of Nations mandate to govern old Palestine, implemented the Common Law system in Palestine, except for the jury system. Legal precents in torts and contracts were borrowed from England, and certain legal areas were codified, in order to assure legal certainty. Thus, the Penal Code in Israel was practically the same as thosed used by the Brits in India or other colonies and territories.

With the establishment of Israel in 1948, English law as it frozen on the date of independence remained binding, with post 1948 English law developments being under advisement only.

Upon Independence, a Bill of Independence was signed as a manifesto for the new born State. While it was drafted as a universal and democratic declaration capturing noble ideas prevalent at the time, it is nonbinding, and hardly ever used as a guiding tool.

Since independence, the young State of Israel was eager to gain recognition in the international arena by way of joining international treaties, and participating heavily in the negotiations of such international treaties. To the extent they were ratified and voted by the Knesset as a law, they are binding just like any other domestic law. For example, see the Warsaw convention.

During the 1960s last century, there was a rush to codify much of the Common Law in areas of contracts and torts. The new laws were a blend of Common Law, local caselaw, and fresh ideas. Today, however, a reading of the plain language of such statutes is never enough to ascertain one's legal position, since Israeli Judiciary feels rather free to add unwritten concepts of good faith, balancing of equities, reasonableness, and even reliance on obscure exceptions, and exceptions to the exceptions.

Today, in the area of Constitutuional law and civil rights, caselaws from Canada are very appreciated. Otherwise, in commerce, cyberspace and other modern causes of actions developed in the United States, Israeli Judges, particularly at higher courts, tend to lovingly emrace them. Israeli Judges do not see the United States as an aggregation of 50 different jurisdictions, and a federal system, as well as model Restatement rules. Rather they classify any legal document originating from the United States, under the omnibus rubric of "American Law". Peculiarly, the nonbinding American Model Rules and Restatement, which are hardly ever cited in a United States brief, are accorded a lot of weight in Israeli Courts, much more than in their Country of origin.

Questions of first impression brought before the Supreme Court of Israel, oftentimes result in a comprehensive comparative analysis and compedium of solutions and approaches from around the world, including Germany, New Zealand and South Africa, even if the parties never cited one foreign case. Such legal opinions become a showcase for a Judge's legal ability, scholastic prowess, analytical skills and writing samples. The litigants, however, may be waiting for a judgment to be rendered two or three years after final oral argument.

Future trends

Predicting future trends in Israel's legal system is impossible. The legal system is as capricious as the Country of Israel itself. Power struggles among Judges have become the norm. When in 2007 one Tel Aviv Judge sued her supervising Judge, no eyebrows were raised. When the President of the Supreme Court in Jerusalem Aharon Barak vacated his post, a noisy and ugly mudslinging among contenders gliched over to the media. Even the position of a minister of Justice has hardly been kept long enough by anybody to achieve any significant changes.

In a judicial system where no Judge feels bound by the doctrine of stare decisis, and where wild interpretations of statutes that twist the plain meaning of the law upside down are the norm, it is not surprising that a proper analysis of future trends is a fool's job. The legal system is Israel is already so uphapazard, and to some extent corrupt, and with abundant nepotism, that a recent survey in June 2007 indicated 33% of the populations believes that the legal system is corrupt and untrustworthy.

A major overhaul is required, but when all major players are ego driven and publicity hungry, it is hard to predict a rosy future for the Israeli legal system.

Religion and law in Israel

The interplay between law and religion in Israel is a significant factor responsible for the the degradation of the quality of life for many Israelis. to some, the imposition of religious dictates equals torture under auspices of the State. When the State of Israel was established in 1948, certain agreements were made between the secular parties and the religious parties in the Knesset to to preserve the character of Israel as a Jewish State. Since then, religious parties have always managed to maintain their power in the Knesset as kingmakers, and they are courted by any winninig party for inclusion into the government coalition by offerings of excessive appropriation budgets, jobs and positions and a promise to maintain the status quo in the secular-religious state of affairs to the detriment of, and at the expense of, most non-religious citizens of the Country.

Under Israeli law, Judges are encouraged to interpret laws, and fill in voids in the law (Lacuna) according to the spirit of ancient Jewish law and Halakha. The fact that most of it is written in Aramaic or Ancient Hebrew and the text of it is hardly understood by most lawyers notwithstanding.

Seperate from the Civil Court system, an entire system of Religious Courts is in place, compelling residents to seek personal status relief in such Courts. There are different Courts for all religions and sects recognized by the State of Israel, and a citizen must petition the Religious Court to which he belongs. Thus, a divorce in Israel between members of two different religions is unobtainable. Ideologically non religious, atheists, agnostics and others whose religion is suspected may not get a divorce in the State of Israel, and they are compelled to surrender to the jurisdiction of a religious Court.

For the Jews, the Rabbinical Courts are the address for divorce. However, the Rabbinical Judges ("dayanim") are appointed from among the ultra orthodox Yeshivas, and they have no tolerance for secular lifestyle, and are biased in favor of men and against women. While support and equitable distribution of property are governed by civil law, and such reliefs are available in Civil Courts, if a man files for divorce in a Rabbinical Court before the wife filed in a civil Court, the Rabbinical Court may claim jurisdiction over the property and support issues as well, a tactical move which normally spells out victory for the husband and extreme misery and humiliation for he wife. Since under Jewish law, a divorce Get must be delivered by the husband to the wife voluntarily, husband are known to hijack the wives' property unless their financial or other demands are met, with the blessing of the Rabbinical Court. Women whose husbands refuse to deliver a Get, or if a husband voluntarily disappears, are called "Chained Women" Agunot [2], they can not remarry, and this status may last for decades[3].

Marriages, too, must be performed according to a person's religion. There are no civil marriage in Israel. Thus, there are no inter-religious marriages in Israel. Under Jewish law, certain persons are forever precluded from marriage, or certain combinations or groups are also precluded, for example, a Cohen may not marry a divorced woman. Again, such ancient and arbitrary laws are imposed on a secular society and causes tremendous anguish and complications. Those who are denied marriage licenses, can only marry abroad. Cyprus is a popular marriage destination, and marriage by correspondence through Paraguay used to be popular as well. If at least one party to such civil overseas marriage is Jewish, Rabbinical law requires that a Jewish Get be obtained. The dayanim are known to abhore civil marriages and treat them as a nullity. In some cases, couples who came before a Rabbinical Court for a consent divorce found that the Rabbis sua sponte annuled their civil marriage, and refused to grant equitable distribution of property, much to their amazement.

Other religious holds on the law in Israel are:

• No inter-faith adoptions.
• Converts into Judaism must follow ultra orthodox paradigms, and undergo long and exhausting studies and tests, without assurance of acceptance.
• Severe restrictions on pig farms and shrimp ponds, and some local zoning against sale of pork and non-kosher food.
• A Certificate of Kashrut requires payments to a Kashrut inspector, often under the table, thus increasing the cost of doing business.
• No public transportation on Saturdays.
• The national airline, (El Al) although privatized, is under threat of boycott if it would ever choose to fly on Saturdays.
• Law of Return.
• The State maintains a Registry of Bastards, the infamous Mamzer book of illegitimate children
• Assaults on gays and lesbians inspired by Halakha. For example, in June 2007 a draft law was voted on in the Knesset disgned to ban a pride parade in Jerusalem, because of its "offensiveness to Jewish Culture". (SeePride parade#Jerusalem).
• Ethical issues in medicine and bio-technology, such as stem cell research, cloning, Euthanasia, and surrogate pregnancy are incorporated into the long with strong emphasis on the attitude of Halakha on the subject.
• Construction, road and infrastructure development are regularly stalled for fear they may be encroaching on a site where Jews may have been buried, if a bone or two are found on site. This is achieved by filing objections with the relevant District Planning and Building Board. Archeological digging permits are similarly affected.
• Hotels in Israel are denied operating licenses if not accomodating Jewish Law. Thus, no unkosher food may be offered in Israeli hotels, and Sabbath elevators stopping automatically in every floor must be installed.
• Employment restrictions on Saturdays, including increased wages for employees clocking hours on the Sabbath.

See also

• Common law
• Civil law
• Legal systems of the world
• Basic laws of Israel

External links

• The Bar of Israel
• The Courts of Israel (Judicial branch of Israel)
• The Knesset (Legislative branch of Israel)
• Israeli Ministry of Justice (Executive branch body responsible for the judicial branch of Israel)